On Wednesday, former National Security Advisor Michael Flynn emerged victorious in the fight over whether to grant his writ of mandamus filed in the D.C. Circuit. This comes after U.S. District Court Judge Emmet Sullivan refused to dismiss Flynn’s case, despite the Department of Justice informing the court that it was no longer pursuing charges against him. Judge Sullivan appointed John Gleeson as amicus curiae to argue for his ability to decide whether the charges should be dropped. In an opinion authored by Judge Neomi Rao the D.C. Circuit admonished Judge Sullivan’s decision to appoint Gleeson and ordered the lower court to dismiss the charges against Flynn.

In her opinion granting the writ, Judge Rao wrote:

Whatever the precise scope of Rule 48’s “leave of court” requirement, this is plainly not the rare case where further judicial inquiry is warranted. To begin with, Flynn agrees with the government’s motion to dismiss , and there has been no allegation that the motion reflects prosecutorial harassment. Additionally, the government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt. See Mot. to Dismiss, ECF No. 198. Specifically, the government points to evidence that the FBI interview at which Flynn allegedly made false statements was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into. Flynn.” Id. at 2. In light of this evidence, the government maintains it cannot “prove either the relevant false statements or their materiality beyond a reasonable doubt.” Id. Insufficient evidence is a quintessential justification for dismissing charges. See Ammidown , 497 F.2d at 623 (explaining that a motion to dismiss should be granted “if it is explained to the judge that there was … an insufficiency of evidence … or other similar consideration”).

On Judge Sullivan’s encroachment on the role of the Executive, Judge Rao wrote:

These clearly established legal principles and the Executive’s “long-settled primacy over charging decisions,” Fokker Servs., 818 F.3d at 743, foreclose the district court’s proposed scrutiny of the government’s motion to dismiss the Flynn prosecution. Before this court, the district judge explains that he plans to “question the bona fides of the government’s motion,” Sullivan Response 29 (quotation marks omitted), “inquire about the government’s motions and representations,” Sullivan Reply 26, “illuminat[e] the full circumstances surrounding the proposed dismissal,” id. at 12, and probe “whether the presumption of regularity for prosecutorial decisions is overcome” in “the unusual facts of this case,” Sullivan Response 3. A hearing may sometimes be appropriate before granting leave of court under Rule 48; however, a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions, because “authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.” Fokker Servs., 818 F.3d at 741. The district court’s orders appointing an amicus, see infra 8–10, and scheduling the proposed hearing therefore constitute clear legal error.

Despite the clear decision from the D.C. Circuit, it is unknown whether Judge Sullivan will comply with its order. It is entirely possible that en banc review of the panel’s decision will be sought. However, it is unlikely that the court would grant such a request considering the narrow application of its decision in the Flynn case.

While the Flynn case may be dismissed from the court system fairly soon, the controversy surrounding the case is far from over. Just yesterday, the Department of Justice filed documents that appear to implicate former President Obama and Vice-President Biden in the plot against Flynn:

According to Strzok's notes detailing the January 5 meeting, Joe Biden ("VP") explicitly mentioned using the Logan Act to go after Flynn, and Obama explicitly directed James Comey ("D") and Sally Yates ("DAG") to investigate Flynn and use "the right people" to go after him. pic.twitter.com/rboF4ju4ks

— Sean Davis (@seanmdav) June 24, 2020